Labour Court Database __________________________________________________________________________________ File Number: CD89208 Case Number: DEC891 Section / Act: S57(1) Parties: AO'B AND J.M. LIMITED - and - THE DEPARTMENT OF LABOUR |
Application by the Department for a determination as to whether or not the Employment Regulation Order (E.R.O.) for the Catering Joint Labour Committee applies to two workers employed by the Company.
Recommendation:
5. Having considered the submissions made by the parties the
Court has decided that the Catering Employment Regulation Order
does not apply to the two workers concerned since the premises do
not in the Court's view come within the definition contained in
paragraph 2 of Part I of the Schedule i.e. the premises are not
primarily used for the supply of "food or food and drink."
Division: Mr Fitzgerald Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD89208 DECISION NO. DEC189
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 57
PARTIES: AO'B AND J.M. LIMITED
(T/A THE COURT ARMS)
and
THE DEPARTMENT OF LABOUR
SUBJECT:
1. Application by the Department for a determination as to
whether or not the Employment Regulation Order (E.R.O.) for the
Catering Joint Labour Committee applies to two workers employed by
the Company.
BACKGROUND:
2. An inspector from the general inspectorate of the Department
of Labour visited the Company on the 3rd November, 1987, for the
purpose of enforcing part IV of the Industrial Relations Act,
1946, concerning remuneration and conditions of employment of
certain workers. The inspector reported that two workers were
being paid less than the statutory minimum rate of remuneration
presecribed in the Catering E.R.O. Another visit was arranged for
the 20th April, 1988 to discuss the application of the Catering
E.R.O. to the two named workers. One of the workers concerned was
employed as a general worker, the other as a barman.
The Company concerned is a public house and its primary business
is the serving of alcoholic beverages, however, between the hours
of 12 noon and 2.30 p.m. "pub grub" is served, (occasionally food
is served in the evenings). The inspector considered that the
Catering E.R.O. was applicable to the two workers concerned and
requested the Company to pay both workers the rates required under
the E.R.O. and any arrears due. This request was repeated
following a further visit to inspect wages records by the
inspector on 17th October, 1988.
The owners of the Company do not consider that the E.R.O. applied
to them because (a) the principal activity of the business is the
sale of drink and (b) the provision of food is not a significant
part of the overall activity. On 10th March, 1989, the Department
referred the matter to the Labour Court under Section 57 of the
Industrial Relations Act, 1946, for a determination as to whether
or not the E.R.O. applies to the two workers concerned. The Court
investigated the matter on 25th April, 1989, in Kilkenny.
DEPARTMENT'S ARGUMENTS:
3. 1. The E.R.O. applies to workers employed in a catering
establishment anywhere throughout the State, except in the
Boroughs of County Dublin and Dun Laoghaire, who are engaged
in any of the following work:
(a) the preparation of food or drink;
(b) the service of food or drink;
(c) work incidental to (a) or (b) and performed at any
store or warehouse or similar place in the catering
establishment.
A "catering establishment" is defined as a premises or part of
a premises primarily used for supplying for reward to any
person, not for the time being resident on the premises, food
or food and drink for consumption on the premises.
2. The Company has been requested to pay arrears of wages but
has declined to do so, arguing that the premises is not
covered by the E.R.O.. It is unclear whether or not it was
the original intention of the Catering Joint Labour Committee
to include public houses that serve food as catering
establishments. The inclusion of barmen/barmaids as workers
coming within the scope of the E.R.O. suggests that public
houses are in fact covered.
3. The Company was registered with the South Eastern Health
Board, on 28th August, 1978, as a restaurant in a licensed
premises (Registration No. 189). The Department requests the
Court to determine whether or not the two workers are covered
by the E.R.O..
COMPANY'S ARGUMENTS:
4. 1. The Company does not consider that the E.R.O. is
applicable because the main activity of the business is the
sale of alcoholic drink, not food. Food is only served at
certain times during the day and is not a significant part of
the overall activity of the business. The E.R.O. refers to
"food and drink" but it does not refer to alcoholic drink.
2. One of the workers said that she worked for the Company as
a cook. The Company denies this. She helped out in the
kitchen. Her hours were 11 a.m. to 3 p.m. on 6 days per week.
The barman works approximately 40 hours per week. He never
worked in the kitchen.
3. Paragraph 2 of Part I of the Schedule of the E.R.O. refers
to "a premises or part of a premises primarily used for the
supply of food or food and drink." It is clear therefore that
this E.R.O. is intended to apply to premises primarily engaged
in the provision of food. The premises in question is
primarily used for the supply of drink. The public house was
purchased by the present owners in 1981.
4. The Company, if the Court determines that the premises is
covered by the E.R.O., will comply with it.
DECISION:
5. Having considered the submissions made by the parties the
Court has decided that the Catering Employment Regulation Order
does not apply to the two workers concerned since the premises do
not in the Court's view come within the definition contained in
paragraph 2 of Part I of the Schedule i.e. the premises are not
primarily used for the supply of "food or food and drink."
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Signed on behalf of the Labour Court
Nicholas Fitzgerald
_____________________
12th May, 1989. Deputy Chairman
B.O'N/J.C.